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From isp liability to isp cooperation international developments from us dmca to uk digital economy act - shira perlmutter


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From isp liability to isp cooperation international developments from us dmca to uk digital economy act - shira perlmutter

  1. 1. FROM ISP LIABILITY TO ISP COOPERATION INTERNATIONAL DEVELOPMENTS FROM ClickDMCAMaster subtitle styleECONOMY ACT US to edit TO UK DIGITAL Shira Perlmutter Executive Vice President, Global Legal Policy, IFPI
  2. 2. BACKGROUND § Challenges of copyright on the internet § 1 ½ decades of adaptation – Successes and failures – Lessons learned § No silver bullet or single answer – Winning hearts and minds – Reasons to prefer legal • Tempting offers • Risks/deterrence § Reality: key role of ISPs – Technical control – Subscriber relationships
  3. 3. 20TH CENTURY: ISP SAFE HARBOURS § Backdrop of potential liability – Direct infringement – Secondary liability § WIPO Treaties 1996 – update copyright for digital age – Wake-up call internationally – Opportunity § DMCA negotiated framework (US 1998) – 4 major ISP functions • “mere conduit” • Hosting • Caching • Information location tools – No monetary damages for businesses acting responsibly – Conditions: • “red flag” knowledge standard • Notice and takedown procedure • No interference with rightholders´ technologies, usage rules • Policy on termination of repeat infringers • No monitoring
  4. 4. SAFE HARBOURS – CONT’D § E-Commerce Directive (EU 2000) – 3 major functions – same as DMCA minus information location tools – Same concept of monetary damages v. injunctions – Conditions: • Same “red flag” knowledge standard • Notice and takedown without procedural details • No monitoring § Similar approach in most major markets (China, Japan, Australia, NZ) § Results: – Well-functioning notice and takedown systems – Some litigation over scope of safe harbours – Injunctions issued by courts, especially in EU
  5. 5. TODAY’S CHALLENGE: MORE EFFECTIVE COOPERATION § New forms of infringement – Rise of P2P – now bulk of online infringement – Content not hosted by ISP – Ever evolving § Available responses – More education (including re: security risks) – More appealing legal alternatives – Enforcing existing law • P2P services • P2P users • ISPs
  6. 6. TODAY’S CHALLENGE: MORE EFFECTIVE COOPERATION – CONT’D § Impact – Greater legal clarity – Greatly increased public awareness – Digital percentage of market up – but not enough to compensate – Services shut down or licensed – Illegal uses continue and evolve – Problem: unfair competition from free/perception of low risk § Solution: help from ISPs – Cooperation/partnership, not liability – Active role in making internet an environment where legal markets can flourish – Steps depending on nature of infringement (P2P v. other) – Voluntary where possible – Need level playing field – government involvement key
  7. 7. THE GRADUATED RESPONSE APPROACH § Basic elements: – Rightholders participate in P2P networks, identify IP addresses making content available – Notify relevant ISP and provide evidence of infringement – ISP matches IP address to subscriber – ISP sends educational/warning notice to subscriber – After multiple notices, if subscriber refuses to stop, deterrent sanction – In most versions, possible sanctions include temporary suspension of account § Developed over past 3 years out of extensive discussions § Seen as preferable solution to alternatives (lawsuits or network-level technical controls § Goals – Migrate consumers to lawful services – Deterrence key - avoid need to apply sanctions • Studies of consumer reactions
  8. 8. GRADUATED RESPONSE – CONT’D § Benefits – Rightholder • Effective • Efficient – Consumer • Better than being sued or prosecuted and subject to costs/damages/fines • No penalties for past behaviour if stop • Identity never disclosed – ISP • Simple and based on existing infrastructure • Have right to take action under existing contractual terms • Improves environment for possible music offerings • Preserves bandwidth – Public interest • Educational
  9. 9. GRADUATED RESPONSE – CONT’D § Addressing concerns – Monitoring private communications – no one is doing this – Data protection – limited internal use of limited types of data – Access to internet – not a ban – Due process – important to build in safeguards § Status – New laws incorporating versions of graduated response • HADOPI (France) • Digital Economy Act (UK) • S. Korea • Taiwan • New Zealand (in consultation process) • Chile – Litigation • Court orders (Belgium et al) • Settlements (Ireland) – Private agreements (US) – Ongoing discussions (EU/some Member States, Japan, Hong Kong)
  10. 10. CONCLUSION § Finding proportionate and reasonable solutions is in everyone’s interest § Give consumers enough reasons to make the right choice without lawsuits § Enable a diverse online marketplace to flourish